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The Supreme Court is set to hear arguments this term on the mass action exception as it relates to parens patriae suits in Mississippi ex rel Hood v. AU Optronics (see the coverage on scotusblog). The issue in that case is "Whether a state’s parens patriae action is removable as a “mass action” under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint."

In another case percolating up, the 9th Circuit ruled on Tuesday that a collection of cases all brought in state court against one drug manufacturer with similar allegations of injury do not fall within the mass action exception and aren't removable. The case, Romo v. Teva Pharmaceuticals USA can be found on the 9th Circuit website. It involves a number of cases filed against the generic drug manufacturer in California. The plaintiffs moved to coordinate the cases in California courts. The defendant responded by trying to remove to federal courts, arguing that this falls under the jurisdiction of the federal courts because CAFA provides that more then 100 cases cases sharing common issues of fact or law proposed to be tried jointly may be removed -- the "mass action" exception. In In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir. 2012) the 7th Circuit held that coordinated cases set to be consolidated "through trial" were subject to the mass action exception and were removable. The 9th Circuit distinguished Abbott and agreed with the plaintiffs that a consolidation for discovery purposes is not the same as a request to try the cases jointly, underscoring that jurisdictional provisions are strictly construed.

Marketplace has a segment about lead paint litigation today featuring our own Elizabeth Burch. The trigger is a lead paint trial that closed in California today. See here for a news story. The question posed is how the lead paint manufacturers have escaped the kind of liability that tobacco or asbestos. What's the difference? Here are some theories. Caveat: These are just some ruminations, not a definitive work on lead paint by any stretch.

1. Who's doing the suing?

Municipalities vs. victims: Beth points out that in these lead paint suits municipalities or states are pursuing a public nuisance theory against the paint manufacturers and this makes them different than some more successful mass torts. Some courts think that this doctrine is a bad fit with the wrong at issue. But not all lead paint cases have been brought by municipalities. In the beginning, much like tobacco or asbestos, these cases were brought on behalf of victims. This is a late-stage litigation after failures at the individual or group victim level.

Poor children vs. workers: The victims of lead paint were poor children who ingested the paint chips, whereas in the tobacco and asbestos cases they were adult workers. This is not a doctrinal explanation but a socio-political one.

Scienter: In tobacco there was evidence of misrepresentation and manipulation. That seems to be a big part of the argument in the California courtroom from press reports: what did the lead manufacturers know and when?

2. What's the doctrine?

Market share liability. First, and I think most importantly, the idea of market-share liability failed to gain traction after some initial gains early on. Without being able to tie a particular manufacturer to the apartment where the paint was ingested, plaintiff can't show that this manufacturer caused the harm. In that sense lead not like asbestos (where work places kept records) or tobacco (where people know what brand they smoked).

Public nuisance doctrine is a relatively novel theory for this type of mass tort. That doesn't make it wrong, but it doesn't make it an easy sell to courts either.

3. Is there insurance? The asbestos manufacturers had more insurance coverage than you'd think due to some loose underwriting in mid-century. What is the lead paint manufacturers' coverage and how is this affecting these suits?

Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its 2014 New Voices in Civil Justice Scholarship Workshop, to be held May 12-13, 2014, at Vanderbilt Law School.

The New Voices format maximizes collegial interaction and feedback. Paper authors do not deliver prepared “presentations.” Rather, all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows.

Submission requirements:

1. Subject matter. Submitted papers should address an aspect of civil justice, broadly defined. Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.

2. Author qualifications. To be eligible to submit a paper, scholars must currently hold either a faculty position or a fellowship.

3. Format / Anonymity. We will consider preliminary drafts, drafts under submission, or accepted papers that will not be published by the time of the workshop. Papers should be formatted either in Microsoft Word or Adobe Acrobat. To maintain the anonymity of the process, please remove any self-identifying information from the submission.

4. Deadline. Submissions should be e-mailed to Branstetter.Program@vanderbilt.edu no later than January 1, 2014. Please include your name, current position, and contact information in the e-mail accompanying the submission. We will contact you with our decision by February 15. Final drafts are due no later than April 15.

The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants. Additional information can be found at http://law.vanderbilt.edu/newvoices. If you have any questions, please email the chair of the selection committee, Brian Fitzpatrick, at brian.fitzpatrick@vanderbilt.edu.

This spring's 20th Annual Clifford Symposium at DePaul University College of Law is featuring Judge Jack Weinstein's Impact on Civil Justice in America. It looks like they have lined up an allstar cast, with Justice Stephen Breyer giving the special address. Speakers include:

Susan Bandes, DePaul University College of Law

Anita Bernstein, Brooklyn Law School

Shari Seidman Diamond, Northwestern University

Howard M. Erichson, Fordham University School of Law

David L. Faigman, University of California Hastings College of the Law

No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent “trolls” and BitTorrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly-situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to exist for defendant aggregation — avoiding duplicative litigation, making feasible negative-value claims/defenses, and allowing the aggregated parties to mimic the non-aggregated party’s inherent ability to spread costs. If so, why is there such resistance to defendant aggregation?

Perhaps, contrary to theoretical predictions, defendant aggregation is against defendants’ self-interest. This may be true in certain types of cases, particularly where the plaintiff’s claims would not be viable individually, but does not apply to other types of cases, particularly where the defendants’ defenses would not be viable individually. These latter cases are explained, if at all, based on cognitive limitations. In any event, defendant self-interest does not justify systemic resistance to defendant aggregation. Likewise, systemic resistance is not warranted because of concerns of weak claims or unsympathetic plaintiffs, the self-interest of individual judges handling aggregated cases, or capture by defendant interests. This Article proposes that to obtain the systemic benefits of defendant aggregation and overcome the obstacles created by defendant and judicial self-interest, cognitive limitations, and capture, defendant aggregation procedures should use non-representative actions, provide centralized neutral control over aggregation, and limit aggregation to common issues. This Article concludes with a modified procedure to implement these principles: inter-district related case coordination.

Professors Sachin S. Pandya and Peter Siegelman (Connecticut) have posted to SSRN their article, Underclaiming and Overclaiming, Law & Soc. Inquiry (forthcoming). Here is the abstract:

Arguments that we have too much litigation (overclaiming) or too little (underclaiming) cannot be valid without estimating how many of the undecided claims that are brought (actual claims) or not brought (potential claims) have or lack legal merit. We identify the basic conceptual structure of such underclaiming and overclaiming arguments, which entails inferences about the distribution of actual or potential claims by their probability of success on the merits within a claims-processing institution. We then survey the available methods for estimating claim merit.

For those of us making brief reference to Ronald Coase in our Torts classes, here are a few links to helpful takes on Coase's scholarship and influence, in the wake of his recent passing: (1) Wall Street Journal editorial, The Wisdom of Ronald Coase; (2) Professor David Henderson (Naval Postgraduate School & Hoover Institution), The Man Who Resisted 'Blackboard Economics'(also in the WSJ); and (3) Cato Senior Fellow Walter Olson's post, Ronald Coase, 1910-2013.

Previous work has explored the influence that apologies have on the settlement of civil legal disputes. This study explored 2 aspects of apologies that commonly arise in the legal setting — the fact that many apologies may be negotiated with or requested from a wrongdoer in the context of settlement discussions and the possibility that an apology may be offered by a wrongdoer’s attorney rather than personally by the offender. In general, apologies given following a negligent action were found to improve perceptions of the offender and the situation. Full apologies that were given in response to a request by the injured party or at the suggestion of a mediator were viewed in ways that were similar to the same apology given spontaneously. On the other hand, full apologies that were offered by an attorney on behalf of the wrongdoer, although improving perceptions somewhat, were less effective than apologies offered directly by the wrongdoer. The motives attributed to the apologizer and general attitudes toward the civil litigation system also influenced perceptions of apologies.

The Supreme Court has held that a plaintiff has a due process right to her day in court. The right is grounded in a process-based theory of procedural due process, which values litigant participation intrinsically. The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed something similar — a right to present defenses. The Court recognized that right in both cases, stating that a defendant could not be punished for harming nonparties or be forced to pay damages to a class action plaintiff without being provided the opportunity to present defenses specific to the nonparties and absent plaintiffs.

The cases are significant not because the Court found the right, but how it did so — relying on an outcome-based theory of procedural due process, under which procedures are necessary to achieve accurate results. The pursuit of accuracy is alarmingly uncompromising. Only the accuracy resulting from individualized proceedings was acceptable. And the Court required individualized proceedings despite the costs — unpunished defendants, with little incentive to alter their behavior, and uncompensated, injured plaintiffs. But the Court did not weigh the costs and instead focused on increasing accuracy even though perfect accuracy can never be achieved. The cases pave the way for an absurdly broad, outcome-based right to day in court for defendants.

This Essay is a contribution to the 19th Annual Clifford Symposium on Tort Law and Social Policy. The focus of the Essay is on the alienability of legal claims. Debates over alienability often emphasize questions of commodification or efficiency, yet there are also interesting remedial implications. Drawing on insights from civil recourse theory, I will argue that some remedies may cease to be apt once a claim has been transferred. For example, apologies may no longer make sense if their recipient is not the party who was wronged, or someone affiliated with that party. Apologies are admittedly not a core remedy in tort law. But similar concerns may arise with respect to punitive damages, particularly if those damages have an expressive component, or are taken to provide a type of private revenge. More broadly, if civil recourse theorists are correct that private rights of action provide a type of accountability, or a mode of “getting satisfaction”, many tort law remedies may have a different meaning post-transfer. This Essay will explore these concerns and suggest several potential responses to them.